Gambrell v. Grand Casino of MS

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 1, 2000
• Docket: 99-60634
• Status: Unpublished

Opinion

No. 99-60634 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60634 Summary Calendar

TRACY GAMBRELL,

Plaintiff-Appellant,

versus

GRAND CASINOS OF MISSISSIPPI, INC. - BILOXI,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:98-CV-206-RG -------------------- April 27, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Tracy Gambrell appeals the magistrate judge’s order

dismissing as time-barred her sex discrimination claims against

Grand Casino of Mississippi, Inc. because Gambrell failed to file

her charge with the Equal Employment Opportunity Commission

within the requisite 180 days. The 180-day period begins from

the “‘date of notice of termination, rather than the final date

of employment.’” Clark v. Resistoflex Co., 854 F.2d 762, 765

(5th Cir. 1988) (citations omitted). In determining when the

employee received notice, courts employ an objective standard,

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-60634 -2-

“focusing upon when the employee knew, or reasonably should have

known, that the adverse employment decision had been made.” Id.

The magistrate judge determined that Gambrell knew she had

been terminated from her position as a valet due to pregnancy on

June 12, 1997, when she was sent home by her supervisor and told

she would need to be transferred to another position. However,

deciding to transfer a pregnant employee for safety reasons is

not necessarily a discriminatory act. See Levin v. Delta Air

Lines, Inc., 730 F.2d 994, 997-98 (5th Cir. 1984). Moreover,

Gambrell was told she would be placed in another position. Thus,

she was not necessarily aware on that date of an adverse

employment action.

There is substantial conflicting evidence regarding when

Gambrell learned that she would not be rehired. Although Grand

places much emphasis on Gambrell’s statement in her EEOC charge

and her complaint that she was terminated in June 1997, the

EEOC’s internal investigation memorandum and the testimony of

Grand’s own employees demonstrate that at no time in June 1997

was Gambrell ever told she would not be rehired due to her

pregnancy. Accordingly, we find that there are genuine issues of

material fact regarding when Gambrell knew or reasonably should

have known that the allegedly discriminatory decision not to

rehire her occurred.

For similar reasons, we find that there are genuine issues

of material fact as to whether Gambrell reasonably believed that

Grand was actively pursuing another position for her such that

the 180-day period would have been equitably tolled until No. 99-60634 -3-

Gambrell discovered she would not be rehired. See Cocke v.

Merrill Lynch & Co., Inc., 817 F.2d 1559, 1561 (11th Cir. 1987).

We, therefore, vacate the grant of summary judgment and remand

for further proceedings consistent with this opinion.

VACATED AND REMANDED.